Calhoun-El v. State

James
A. Calhoun-El, appellant, appeals from the December 3, 2012,
Order of the Circuit Court for Montgomery County, denying his
Motion to Reopen Post-Conviction Relief. Appellant filed an
Application for Leave to Appeal, which this Court granted on
December 10, 2015.

Pursuant
to this Court's Order directing the parties to brief
three issues, appellant presents the following three
questions:

1. In light of Unger v. State, 427 Md. 383 (2012),
did the trial court at appellant's 1981 trial commit
reversible error by instructing the jury that (1) as to the
offenses with which Calhoun-El was charged, the jury was
"the sole judges of the law and facts, " (2) the
court's instructions as to the offenses were
"advisory, " and (3) the jury was "not bound
to follow" the instructions?

2. If the trial court committed reversible error, then in
light of Unger, did defense counsel's failure to
object to the instructions constitute a waiver?

3. If defense counsel's failure to object to the
instructions did not constitute a waiver, then in light of
State v. Waine, 444 Md. 692 (2015), did the circuit
court abuse its discretion in denying Calhoun-El's motion
to reopen his post-conviction proceeding and err in failing
to vacate his convictions and award him a new trial?

For the
reasons set forth below, we shall affirm the judgment of the
circuit court.

FACTUAL
AND PROCEDURAL BACKGROUND

On
November 3, 1981, a jury in the Circuit Court for Montgomery
County convicted appellant of first degree murder of a police
officer, first degree murder of a civilian, and several
related offenses. It subsequently sentenced appellant to
death for the murder of the police officer, and the circuit
court sentenced appellant to life for the murder of the
civilian, and an additional eighty years, consecutive, for
the remaining convictions. Appellant's convictions were
affirmed on appeal by the Court of Appeals.[1]Calhoun v.
State, 297 Md. 563 (1983), cert. denied sub
nom. Tichnell v. Maryland, 466 U.S. 993 (1984).

For the
purposes of this appeal, we adopt the "agreed statement
of facts" set forth by the Court of Appeals in its
opinion affirming appellant's convictions:

The W. Bell store is located at 1130 New Hampshire Avenue in
White Oak, Montgomery County. Banging noises coming from the
area of the Bell store were heard by a neighbor across the
street at approximately 11:00 p.m. on March 26, 1981. She saw
shadows in the area of the roof at the back of the store. The
neighbor notified her father, who went outside their home
with a flashlight to investigate. He saw people leaving. She
saw a car, which looked like a hatchback, parked across the
street.

An employee of Electro Protective Corporation testified that
at 6:16 a.m. on March 27, 1981, both the safe alarm and the
perimeter alarm at the Bell store were activated. He notified
the police; Douglas T. Cummins, Jr., Bell's assistant
manager; and David W. Myers, an employee of Electro. Officer
Philip Carl Metz, the police officer covering that beat on
that particular day, was dispatched to the Bell store.

Cummins testified that at approximately 6:20 or 6:25 a.m. on
March 27 he received a telephone call from Electro. He
arrived at the store at about 7:00 a.m. at which time he saw
a white station wagon with Electro's name on the door in
front of the store. He observed a late model two-door black
Cadillac on the other side of the parking lot. A black male
in the front seat was the sole occupant.

The technician in the Electro vehicle identified himself to
Cummins. Cummins drove around the store and noticed that the
outside of the building appeared to be secure. Officer Metz
arrived on the scene at about 7:15 a.m. Cummins unlocked
Bell's door with a set of master keys. He, Officer Metz,
and Myers entered the building. They first checked the
merchandise area. Then they proceeded to the cashroom. It had
two doors, both of which supposedly could be opened only from
the inside. Cummins put a key into the door. Upon his opening
the door Officer Metz stepped in front of him to enter. At
that moment Cummins noticed "a shoulder and about half
of a back of an individual standing to the right of the
doorway." Metz was pulled into the doorway as another,
shorter individual armed with a pistol jumped into the
hallway area. Cummins did not see the place from which the
shorter man came. Myers drew his gun and stumbled back into a
hallway door when he was shot. Cummins said he realized he
had been shot in the upper shoulder area of his chest. After
thirty to forty-five seconds the taller man opened the door
and dragged Cummins into the office. Cummins at that point
observed Metz lying on the floor and bleeding from the head.
Cummins said that although he saw or heard no evidence of a
third person he had no idea whether there might have been
other individuals there who had left through another door by
the time he was dragged into the room. He asserted that the
shorter man shot him and he could only assume that it was the
taller person who shot Metz.

Cummins complied with the taller man's order to open a
combination safe. He was then asked by that same person to
open a second safe. He was hit on the left side of his head
with a pistol when he reached for his wallet which contained
the combination to the second safe. Cummins said that after
he failed twice in his efforts to open the second safe this
taller person cocked a pistol, put it to the side of
Cummins' head and informed him that if he did not open
the safe that time he was a dead man. He succeeded in opening
the safe. He was then told to sit on the floor. His wrist was
handcuffed to a file cabinet drawer. He heard his assailants
scramble up through the ceiling of the office "and then
back down on the other side." He pulled himself onto a
chair, pulled the file drawer from the cabinet, carried the
drawer by its handle to a telephone in the loading dock area,
and called the police. After failing to detect a pulse from
Myers' neck, he went to the door and waited for help.

Cummins testified that both of the men that he saw were
wearing stocking masks which covered their entire heads. Both
men wore gloves on their hands. Cummins observed gaps between
the sleeve cuffs and the top of the gloves of these persons
from which he determined they were black.

James Adcock testified that while working as a plumber on the
fourth floor of a building next door to the Bell store, at
approximately 7:00 a.m. on March 27, 1981, he looked out the
window and saw two black males running across the parking
lot. He said they "skipped" over a fence, jumped
over a wall and went into a parked "brown or
maroon-looking car" that then drove away.

Evidence to connect Calhoun with the crime included that of
an accomplice who testified pursuant to a plea agreement. His
testimony included a description of an attempt by him and
another to break into the Bell store through the roof shortly
after midnight on the morning of this incident. They were
frightened away when they noticed someone watching them with
a flashlight from across the parking lot. He related how
later, in the early hours of that morning, he and his
associates encountered Calhoun, discussed the hole they had
put in the Bell roof, and worked out a plan for entering the
store. They then waited for the manager to arrive so that the
robbery could be effected. He described the operation in
detail including mention of weapons, a description of the
stocking masks used and their source, and testimony as to the
amount of money taken and its division. There was substantial
other evidence adduced in addition to that of the accomplice
including testimony concerning casts made of footprints found
in the area. Two of these casts matched one of the shoes of
the accomplice.

Id. at 572-74.

In
1985, after his convictions were upheld on direct appeal,
appellant filed a motion for post-conviction relief, arguing,
inter alia, that the trial court's
"advisory" jury instructions during the
guilt/innocence phase of the trial were improper. The
post-conviction court rejected this claim, finding that the
contention was waived because defense counsel failed to raise
the issue at trial and on appeal.[2]

In
1989, appellant filed a "supplemental" petition for
post-conviction relief, and the State conceded that appellant
was entitled to a new sentencing proceeding. In 1990, after a
multi-day sentencing proceeding, the jury determined that
appellant should be sentenced to life, not death, for the
murder of the police officer, with this sentence to be served
consecutively to appellant's other sentences.

Appellant
subsequently filed multiple motions for collateral review.
All of those motions were denied without a hearing.

The
motion at issue here is the Motion to Reopen appellant's
post-conviction case, which was filed on July 5, 2012. After
the circuit court denied appellant's motion without a
hearing, appellant filed an application for leave to appeal,
which this Court granted.

DISCUSSION

The
issues in this case are all based on appellant's
contention that the "trial court committed reversible
error when it told the jury that its instructions on
reasonable doubt, the burden of proof, and the substantive
definitions of the offenses were advisory and could be
disregarded." He contends that the law is clear that
"jurors must be told that instructions regarding
constitutional requirements and the undisputed law of the
crimes alleged 'are binding on the jury and counsel as
well.'" Before addressing the parties'
contentions, we first will address the rather tortured path
of the law in Maryland regarding "advisory" jury
instructions.

I.

History
of Advisory Instructions

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Article
23 of the Declaration of Rights provides that the jury in a
criminal case "shall be the Judges of the Law, as well
as of fact." In 1980, the Court of Appeals addressed the
propriety of "advisory rather than binding (jury)
instructions" and whether such an instruction
"facially deprives a defendant of the federally secured
right to due process of law" under the 14th Amendment to
the U.S. Constitution. Stevenson v. State, 289 Md.
167, 169, 172 n.2 (1980), overruled by Unger, 427
Md. 383 (2012). In addressing this issue, the Court stated
that it first would determine what "law" the jury
is entitled to "judge" under Article 23.
Id. at 176. The Court stated that previous decisions
made clear that the right of juries to decide the law was not
"all-inclusive, " but rather, it was much more
limited in scope. Id. at 177. Indeed, past decisions
"make it quite evident" that the jury's role in
judging the law was "confined 'to resolv(ing)
conflicting interpretations of the law ...

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